'Substantiative Powers' Of Municipal Corporations Can't Be Used To Benefit Developers: Bombay HC Paves Way For Demolishing Portions Of Thane Mall

The Municipal Corporations and their Commissioners do have substantial powers under the Maharashtra Municipal Corporation (MMC) Act, 1949, however, these powers can never be exercised to benefit the builders or developers at the cost of public amenities, observed the Bombay High Court on Monday (October 7) while imposing a cost of Rs 2 lakh on a developer and the Thane Municipal Corporation (TMC) for permitting developer to construct a mall over a Nallah (drain).

The High Court also set aside the February 2005 order of the TMC which regularised the illegally constructed portions of the popular Korum mall in Thane district, which would mean that the authorities will have to now demolish the mall.

A division bench of Justices Mahesh Sonak and Kamal Khata noted that the developer - M/s Kalpatru Properties (Thane) had continued to construct a mall, illegally, defying the stop-work orders passed by the TMC and even after the civic body razed some portions of the illegal construction on the nallah, it continued with the constructions with 'impunity.'

The bench further took exception to the fact that the TMC Commissioner proceeded to regularise the illegal structure in February 2005, citing its 'powers' under the MMC Act.

"The Municipal Commissioner may have been given substantial powers under the MMC Act of 1949. However, the Municipal Corporation and its Commissioner are trustees of the power and property they wield and, therefore, have to exercise such powers in the interest of the corporation and the members of the public, which the corporation is duty-bound to serve. Such powers can never be exercised to benefit the builders and developers at the cost of public amenities like Nalas and drains being choked or otherwise encroached upon. That would amount to abuse of such power," the judges held in the order.

The bench disposed of the petition filed way back in 2005, by the members of a society, who claimed that their entrance was blocked by this sudden construction of illegal mall over a nallah. The society members further contended that construction also blocked the passage of drain water, thus leading to clogging of water in the area.

On the other hand, the TMC disputed the same arguing that the nallah or the drain is not a valuable municipal property.

"This contention is entirely misconceived. Ultimately, the municipal Nallah/drain serves a public purpose. Any obstruction to the municipal Nallah/drain seriously affects the public interest. As it is, there is frequent flooding in urban areas mainly because the Nallah and drains are choked up with filth and unlawful constructions made on its banks and also, as this case would indicate, within the Nallah itself," the judges observed.

Further, the judges noted that in a suit filed with regards to the construction of the portion of the mall on the nallah, before a city civil court, the TMC in its reply and written statement had vehemently asserted that the construction was wholly illegal and unauthorised and that the same was done with impunity by defying the stop-work orders issued by the TMC.

However, the civic body changed its stance within a few months of filing its reply before the civil court and in February proceeded to regularise the 'wholly illegal and unauthorised' construction.

"There was no explanation whatsoever for this drastic volte-face. This is sufficient to strike down the impugned regularisation order dated February 5, 2005 because the same is arbitrary and a product of complete non-application of mind. Vital and relevant considerations have been deliberately ignored, and the impugned order is premised on irrelevant and even non- existing material. This also shows the extent to which the Commissioner of TMC was prepared to help a builder and developer at the cost and prejudice of the municipal Nallah/public drain by raising frivolous defences, which even the builder found embarrassing to justify," the judges said.

With these observations, the bench disposed of the petition.

Appearance:

Advocates Amol Mhatre and Yash Dewal appeared for the Petitioners.

Assistant Government Pleader Rupali Shinde represented the State.

Senior Advocate Dr Milind Sathe and Advocate Mandar Limaye represented the TMC.

Senior Advocate Girish Godbole along with Advocates Narayan Sahu, MS Federal, Shrinivasan Mudaliar, Dinkar Desai and Hiral Tanna instructed by Federal & Company, represented the Developer.

Case Title: Natvar Patel vs State of Maharashtra (Writ Petition 3351 of 2005)

Click Here To Read/Download Judgment